Madigan v Hughes - [1999] NSWSC 183

CITATION: Madigan v Hughes & Ors [1999] NSWSC 183

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11093/97; 11092/97; 20932/95

HEARING DATE(S): 01/02/99; 02/02/99; 03/02/99; 04/02/99; 05/02/99; 08/02/99; 09/02/99; 10/02/99; 11/02/99; 12/02/99; 15/02/99; 16/02/99

JUDGMENT DATE:
16 February 1999

PARTIES :

Michael Lennard Madigan v Gregory Hughes & Ors
Suzanne Margaret Madigan v Gregory Hughes & Ors
Simon Madigan by his next friend Michael Madigan v Gregory Hughes & Ors

JUDGMENT OF: Abadee J at 1

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER:

COUNSEL : B. Gross QC; T. Boyd; A. Porthouse - Plaintiff
M. Meil QC; Walsh - 1st and 2nd Defendants
M. Joseph SC - 3rd Defendant

SOLICITORS: Carroll & O'Dea - Plaintiff
Abbott Tout - 1st and 2nd Defendants
Phillips Fox - 3rd Defendant

CATCHWORDS:

ACTS CITED: Motor Accidents Act

CASES CITED: Sibley v Kais (1967) 118 CLR 424
Yu v Yu (1996) 26 MVR 509
Stocks & Anor v Baldwin (1996) 24 MVR 416
West v GIO (1981) 148 CLR 62 at 66

DECISION: Verdict and Judgment for plaintiff as and against the 1st and 2nd defendants with 40% contrib. negligence, a verdict and judgment for the 3rd defendant in respect of that action as and against the 1st and 2nd defendants. In respect of the plaintiff's parents' actions for nervous - verdict and judgment as and against 1st and 2nd defendants. Verdict and judgment for the 3rd defendant.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ABADEE J
TUESDAY 16 February 1999
11093/97 - Michael Lennard MADIGAN v Gregory HUGHES
& Ors
11092/97 - Suzanne Margaret MADIGAN v Gregory HUGHES
& Ors
20932/95 - Simon MADIGAN by His Next Friend Michael
MADIGAN v Gregory HUGHES & Ors
JUDGMENT - Re Liability
1 HIS HONOUR: After a trial which has lasted for some two and a half weeks where literally dozens of exhibits have been tendered, where there have been numerous lay witnesses, where there have been many exhibits, something in the order of five or six expert witnesses, there is also six hundred odd pages of transcript to consider in relation to this matter, I am in a position to give judgment.
2 Despite what I have said, I have come to a firm conclusion in relation to that matter. I do not consider there is any benefit to be derived from reserving judgment in the circumstances. I say that because during the course of the case I have read and re-read the evidence as it is been produced. I also say it because I have had the benefit of extensive written submissions on behalf of the parties and extensive oral submissions also made on behalf of the various parties.
3 The infant plaintiff's action, being an action by Simon Madigan, has been heard at the same time as two actions for nervous shock brought by his parents, Michael and Suzanne Madigan.
4 Their actions for nervous shock arise from the circumstances giving rise to the plaintiff's own…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Madigan v Hughes

Details

AGLC: Madigan v Hughes [1999] NSWSC 183
Case: [1999] NSWSC 183
Decision Date: 16 February 1999

CaseChat Overview and Summary

Madigan v Hughes involved a tragic motor vehicle accident where an infant plaintiff, Simon Madigan, sustained severe injuries when his bicycle collided with a van driven by Gregory Hughes, owned by his employer. The case was heard alongside actions for nervous shock by Simon's parents, Michael and Suzanne Madigan, arising from the same incident. The trial lasted over two and a half weeks, with numerous exhibits, lay and expert witnesses, and extensive submissions from both parties. The court determined that Simon did not cut the corner while entering the intersection but rode on the correct side of the road, and that the accident occurred in the "throat of the intersection." The court found that the driver, Hughes, was negligent for driving at an excessive speed and failing to brake adequately upon seeing Simon. The court also found Simon contributory negligent at 40%, considering his speed and failure to stop or slow down at the intersection. The final judgment awarded damages to Simon and his parents against Hughes and his employer but not against the Sutherland Shire Council, the road authority.

Orders